The State of Human Rights and Rule of Law in Russia: U.S. Policy Options

December 14, 2011

Testimony by David J. Kramer, Freedom House president, before the United States Senate Foreign Relations Subcommittee on European Affairs, on December 14, 2011

Madame Chairwoman, Members of the Subcommittee, it is an honor to appear before you here today to discuss “The State of Human Rights and Rule of Law in Russia: U.S. Policy Options.” The timing of this hearing following last week’s critically important developments could not be better, and I’m pleased to appear with four highly respected colleagues: Assistant Secretary Phil Gordon, Deputy Assistant Secretary Tom Melia, Tom Malinowski from Human Rights Watch, and Ed Verona from the U.S.-Russia Business Council.

We would be having a very different discussion, I would bet, were we meeting, say, two weeks ago. I admit that I would have expressed little interest in the December 4 Duma election. I and many others expected another victory for United Russia through manipulation and fraud and, more depressingly, a sense of resignation among the Russian people that this is par for the course in Russia, that there is little they can do to change the situation. What a difference a week can make.

Over the past decade, Freedom House has been documenting Russia’s steep and steady decline in democracy and human rights. This time tracks the period of Vladimir Putin’s leadership, though I am no fan of the Yeltsin years, to be clear. As I mention below, ordinary Russians are increasingly expressing their intolerance for violations of their rights, which has become routine under Putin. They are also coming to realize the degree to which their country’s wealth has been plundered and that with Putin’s presumed return to the presidency for at least six more years, this gross misuse of public wealth will continue unabated. Russian society is now reappraising its approach to its governors. Given this reappraisal, it is an opportune time for the United States to rethink its approach to Russia, which I will discuss in more detail below.

Enough Is Enough!

Tens of thousands of Russians who came out on the streets of Moscow, St. Petersburg and some 40 cities across the country and millions more in the voting booths nationwide sent a clear message to the authorities: they have had enough of the status quo. Despite the Kremlin's concerted efforts -- rampant harassment of opposition and civil society groups, cyber attacks on liberal platforms like Live Journal and the independent election monitoring organization Golos, and pervasive fraud and ballot stuffing -- the ruling United Russia party still could not muster 50 percent of the vote. Given the extensive ballot-stuffing and vote manipulation, United Russia undoubtedly received considerably less support than the 49 percent with which it was credited. By comparison, it managed to secure 64 percent support in the 2007 Duma elections, at least according to official statistics.

Between 2007 and today, the level of frustration among Russians has reached its highest levels -- and concomitantly United Russia's and Putin’s and Medvedev's polling has hit new lows. A growing number of Russians talk about emigrating from the country, fed up with their political stagnation and never-ending corruption. But on December 4, many voters decided that it is the authorities who should leave, not they. Russian officials from the very highest levels to the lowest ranks became unbelievably greedy over the years, viewing the state’s coffers and assets as their own personal trough. Personal enrichment – “get it while you can” – was the reason to serve in government for many officials. The lack of accountability – made significantly worse when Putin eliminated elections for governors in 2004 – and the lack of true justice grated on people’s nerves, a factor on December 4.

Similarly, Russians did not react well to the plans announced by Medvedev and Putin September 24 to switch jobs and pave the way for Putin to return to the presidency for as many as another 12 years. The prospect of 24 years total (2000-2024) of Putin at the helm was simply too much for many Russians to stomach. To many, this undemocratic return to the presidency was made so that Putin could preserve the status quo and the corrupt system with it. It is true that during Putin’s reign, many average Russians experienced an improvement in their own standard of living, but the corrupt nature of the regime meant that their enhanced personal situation was never safe from thieving officials. Money that could have been invested in necessary infrastructural improvements, in health care or education instead went to line official pockets. The recent Kremlin-backed push to eliminate elections of mayors risked destroying accountability at increasingly lower levels of government. Amid the negative online reaction to a poorly staged event for Medvedev at Moscow State University last month and the booing of Putin at a recent sporting event, Russians decided on December 4 that they wanted to reassert some control over their future – they decided enough was enough.

After casting their ballots against the status quo, tens of thousands of Russians across the country reinforced their desire for real change by taking to the streets peacefully. Many of those protesting in the last week never before participated in political activity of any kind, including many young and middle class people, making these demonstrations different from anything in the past. They conveyed their frustration with the rising level of corruption throughout Russian society and with officials who engage in human rights abuses, including the murders of journalists, lawyers, and human rights activists. They indicated that Putin’s return to the presidency in next March’s presidential election should not be treated as a foregone conclusion. In short, Russian voters declared enough is enough. As political and social activist Alexei Navalny, arrested last week and sentenced to 15 days in jail, wrote from his jail cell, “We all have the only weapon we need, and the most powerful: that is the sense of self-respect.”

The vote on December 4, therefore, can be considered a vote against United Russia, Putin, and the status quo. Yet missing for many Russians is what or whom to vote for. The Communist Party did significantly better in this election compared to 2007, but many Russians opted to vote for any party except United Russia; one should not fear a return of the Communists to power. The same is true of the other two parties – Just Russia and the misnamed Liberal Democrats garnered more support because they weren’t United Russia. A serious liberal opposition party, PARNAS, wasn’t allowed to run, and the Yabloko party has been around too long (and perceived by many as too cozy with the Kremlin) to have a promising future. Of course the Kremlin has actively worked over the years to ensure that a viable opposition never materialized, just as it has stunted the growth of independent media, civil society and other institutions of accountability and transparency.

This represents one of the major challenges looking ahead: Russian voters need a serious alternative to United Russia and to Putin. Anger and frustration in voting against the status quo need to be channeled into reasons to vote for a new political entity and individuals. As one protestor told my colleague Susan Corke in Moscow, “There is optimism that change is now inevitable, but what is not clear is in what direction change is headed.” There is little time for the opposition before the March 4 presidential election to get its act together – and billionaire Mikhail Prokhorov, who announced his candidacy for president on Monday, is not the answer. There is even concern of some manufactured crisis that Putin would use to rally Russians around his candidacy or cite as a pretext to postpone the presidential election. Some fear a repeat of 1999, when four mysterious bombings unconvincingly attributed to Chechen terrorists claimed 300 Russian lives and also turned the political situation at the time upside down, paving the way for Putin’s rise to power.

Indeed, the current authorities are desperate not to lose the reins of power and may resort to desperate measures. Because he has so much at stake in preserving the status quo, Putin will not merely stand still. Just last week, Putin blamed the United States and Secretary of State Hillary Clinton for instigating last week’s protests. Since his early years as president, Putin has always blamed others for threatening Russia. Whether after the Beslan tragedy in 2004 or in his famous Munich speech in 2007 or his comments last week, Putin sees threats to Russia from beyond the country’s borders, especially coming from the West. This, of course, is patented nonsense. The greatest threats to Russia come from the Kremlin’s ineffective and destabilizing policies in the North Caucasus, the lack of a sound ethnic and religious policy, lawlessness among the security services and law enforcement sector, and a rotting ruling clique with an insatiably corrupt appetite. To find the real threat to Russia, Putin and those around him would have to buy mirrors.

Freedom House has been documenting Russia’s decline in democracy and human rights for over a decade. In our Freedom in the World and Freedom of the Press surveys, Russia is ranked Not Free, and Russia’s democracy score declined in our Nations in Transit due to deepening pressures on the judiciary and federal encroachments on local governance, as regional and local executives who once came to office through elections were replaced by appointed officials. Despite the ongoing pressures and obstacles imposed by the authorities, the nongovernmental sector persisted, at great risk, in organizing rallies to oppose local officials in Kaliningrad, defend the Khimki forest outside Moscow from development, and assert the constitutional right to freedom of assembly. In response to these efforts, police raided many organizations, confiscating computers and documents, and broke up a number of demonstrations with excessive force. Murder cases of government critics, journalists, and lawyers like Alexander Litvinenko, Anna Politkovskaya, Paul Klebnikov, Natalya Estemirova, and Sergei Magnitsky, to name just a few, remain unsolved. Journalists and bloggers such as Oleg Kashin and Alexei Navalny are beaten and/or investigated for critical analysis and probing reporting. Critics like Mikhail Khodorkovskiy bear the brunt of a rigged legal system that authorities use to even political scores. And the North Caucasus, while less violent than ten years ago, remains a human rights mess, with a climate of impunity fostered and enabled by Chechen leader Ramzan Kadyrov (a Putin favorite).

The lack of accountability for human rights abuses and the grossly politicized legal system create an environment wherein such abuses are not only condoned but expected, almost as a demonstration of loyalty to the regime. Essentially, Russian leaders for more than a decade have shown no respect for human rights, accountability, or independent institutions, and refuse to allow a viable opposition to take root.

Until, that is, last week. After using violence against demonstrators earlier in the week, authorities did allow Saturday’s protest to proceed without interruptions. They should not be praised, however, for not “cracking heads” to use a Putin expression, this past Saturday; the numbers of protestors made use of force unpalatable even for the Kremlin even in the face of a massive security presence. State-controlled television reported on the protests, though they omitted any critical mention of Putin or Medvedev. Much of the population nationwide from many walks of life including of many stripes -- yuppies, babushkas, students -- protested against the Medvedev-Putin duo, and even the Kremlin cannot ignore them any longer.

What Should The United States Do?

Russia’s future, it goes without saying, will be decided by Russians themselves, but there are steps the U.S. Congress and the Obama Administration should be taking. Let me offer four recommendations:

Raise the profile of democracy/human rights concerns as it relates to Russia and speak truth to power.

Graduate Russia from Jackson-Vanik, but only if the Magnitsky legislation (or something comparable that addresses present-day democracy/human rights challenges in Russia, is passed in its place.

Confirm Michael McFaul as the new U.S. Ambassador to Russia.

Raise the profile of democracy/human rights concerns as it relates to Russia and speak truth to power:

Secretary of State Hillary Clinton did a good job of this last week in Europe, abandoning the Obama Administration’s previous reticence to criticize Russian authorities for their human rights abuses, corruption, and electoral fraud. Her clear and repeated condemnation of the Kremlin's efforts to rig the Duma elections was the clearest, strongest language uttered by a Cabinet-level Obama Administration official to date. Clinton unambiguously stood with those who protested against Putin and United Russia.

"We have serious concerns about the conduct of those elections," Clinton said in her speech before the Ministerial meeting of the Organization for Security and Cooperation (OSCE) in Europe in Vilnius. "Independent political parties, such as PARNAS, were denied the right to register. And the preliminary report by the OSCE cites election day attempts to stuff ballot boxes, manipulate voter lists, and other troubling practices. We're also concerned by reports that independent Russian election observers, including the nationwide Golos network, were harassed and had cyber attacks on their websites, which is completely contrary to what should be the protected rights of people to observe elections, participate in them, and disseminate information. We commend those Russian citizens who participated constructively in the electoral process. And Russian voters deserve a full investigation of electoral fraud and manipulation … The Russian people, like people everywhere, deserve the right to have their voices heard and their votes counted. And that means they deserve fair, free, transparent elections and leaders who are accountable to them."

Despite Putin’s attack against her, Clinton did not back down during a whirlwind tour of Europe. Clinton’s candor, however, should have been reinforced by the White House and President Obama in particular. When Putin went after his secretary of state, the President should have been out there defending her and stating unambiguously that he supported her criticisms of the elections. Since a laudable speech in July 2009 in Moscow in which he spoke about Russia’s shortcomings in the area of human rights, Obama has been virtually silent on Russia’s deteriorating political situation.

Obama should lay down the expectation that Washington will be watching the government’s treatment of protestors and the conduct of next March's presidential elections, thus dispelling the myth that his "reset" policy means the United States will remain silent when things go wrong in order to keep relations friendly and warm. If the presidential election next March is riddled with as many problems as was the Duma election, then the U.S. should raise questions about the legitimacy of the next Russian leader. Some are even raising these questions about the new Duma. Given how much time Obama has invested in the reset with Russia, it is important for him to speak out and reinforce Clinton's assessment. It matters who in the U.S. government conveys these messages. In these days of revolutions and uprisings against authoritarian regimes around the world, the president should not be unclear in his position vis-a-vis Russia, as he was with Iran in June 2009 and to some extent with his hesitation on Egypt and Syria in 2011.

The United States should stand unequivocally for democratic processes, rule of law, and respect for human rights. Russia's combination of political stagnation and growing corruption under Putin is destined for crisis (as in the Mideast). Putin's authoritarianism was bound to hit a wall. In the end, a U.S. policy – publicly and privately -- that is consistent with American values is one that simultaneously supports democratic accountability in Russia. When Russian officials behave in blatantly undemocratic ways, as they did on December 4 and in the lead-up to the election, they should not get a pass from the White House because of fear that criticism of their actions might upset the reset.

The reset was already under stress, with increasingly anti-American rhetoric coming out of both Medvedev (who threatened to target Russian missiles against the U.S. missile defense plans) and Putin (up to his old rhetorical tricks). Indeed, the reset hit its high point more than a year ago with passage of the New START nuclear reductions treaty, but it has been on a steady but undeniable decline since, notwithstanding the recent agreement for Russia to join the WTO. This decline is not due to increased criticism from the Obama administration of Russian officials -- such talk is much too new. The deterioration in relations instead is largely because Russian officials do not share our values.

In fact, it was only a matter of time and quite predictable that the reset would hit a brick wall, given the Neanderthal views of Russia's corrupt leadership. But we can build a new foundation with the people of Russia. Support for principles and not individuals will rarely do us harm, and Secretary Clinton, to her credit, put in place the first bricks for such a foundation. It would also be helpful to tap into unused funds (some $150 million) left over from The U.S.-Russia Enterprise Fund (TUSRIF) in support of democracy and civil society programs. Finally, the U.S. should ramp up exchanges and engagement with Russian youth and encourage their activism. Indeed, now is the time to build bridges among citizens of the U.S., Russia, and Europe.

Pass S. 1039, The Sergei Magnitsky Rule of Law Accountability Act of 2011.

The Magnitsky case has become a cause célèbre in the U.S. Congress and among many European parliamentarians because it exemplifies what is rotten in Russia. Jailed unjustly after alleging officers of Russia's Interior Ministry took part in a $230 million tax fraud against his client, Hermitage Capital, Magnitsky was murdered in jail after being beaten and denied medical treatment despite endless pleas for help. House and Senate versions of the “Justice for Sergei Magnitsky” bill would impose a visa ban and asset freeze against Russian officials suspected of involvement in Magnitsky’s murder; the Senate version, which enjoys strong bipartisan support, looks to extend such measures to other human rights abuse cases in Russia as well.

Like no other initiative in memory, this legislative push in both the U.S. Congress and in Europe (the Dutch parliament in late June unanimously endorsed a Magnitsky-like effort, as have the European and Canadian parliaments) struck a chord in Moscow over the summer and forced Russian authorities to reopen the Magnitsky case to further investigation. The lack of recent momentum on the legislation, however, has eased the pressure on Russian officials, who once again announced that Magnitsky himself was guilty of embezzlement and have limited the investigation to doctors in the prison, not those guilty of putting Magnitsky in jail in the first place or those involved covering up his murder.

In the absence of outside pressure, Russian officials not only show zero interest in providing accountability in this case, but they manifest outright defiance, such as when several Ministry of Interior officials accused of fraud by Magnitsky were not only given awards but promoted last year.

Earlier this year, when it appeared that the Senate might move on the legislation, we heard a different tune coming out of Moscow on the case. Several prison officials where Magnitsky had been held became the focus of investigations, and Medvedev called for justice in the case (though has yet to deliver). In the absence of accountability and rule of law in Russia, American and European parliamentarians had made it clear that if Russian officials engage in major human rights abuses, they and their immediate families cannot enjoy the privilege—not right, but privilege—of traveling to or living or studying in the West, or doing their banking in Western financial institutions. This matter demonstrates that the West, including the U.S. Congress, does have leverage over Russia, if we choose to exercise it. After all, Russian officials place their money in Western financial institutions; the smart ones don’t leave their money in Russia (as reflected in the nearly $70 billion in capital flight this year).

Alas, the failure to move the legislation through the Congress has eased the pressure on Russian officials. The only way to have serious investigations and prosecutions in the Magnitsky or other human rights cases—and to go beyond prison officials but to include Ministry of Interior officials who were responsible for Magnitsky’s incarceration in the first place—is to keep the pressure on and pass the bill. I commend your co-sponsorship of this bill, Senator Shaheen, with Senator Cardin and nearly a quarter of the Senate.

Claims by Obama Administration officials that the legislation is unnecessary because the State Department has already banned certain Russian officials implicated in the Magnitsky case are not sufficient. The administration must also place these officials on an asset freeze list, which would be publicly announced; the names of those on a visa ban list are not made public because of visa confidentiality rules. The point is to make clear to Russian officials that if you don’t murder journalists, lawyers, and opponents or engage in other gross human rights abuses, then you have nothing to fear from the bill. But in the absence of accountability in Russia, this draft bill has already done more for the cause of human rights there than anything done by the Obama Administration (or by the Bush Administration in which I served).

The other concern raised by Russian officials and apparently shared by some in the U.S. is that passage of the Magnitsky legislation would sink the reset policy and end cooperation on issues like Iran, North Korea, and Afghanistan. If that’s the case, then the reset is extremely shallow and on its last legs, its successes grossly oversold. Russia presumably is cooperating with us on these strategic challenges because it’s in their interests to do so, not because they’re being nice to us and doing us favors. If they stop this cooperation because of the Magnitsky bill, then we really need to reexamine the relationship and the sustainability of the bilateral relationship. Moreover, the U.S. and Europeans should firmly push back against such threats and remind Russian officials that if they ended human rights abuses and held accountable those who committed them, such legislation wouldn’t be necessary at all. If Russia wants to be treated like a partner, then it needs to abide by the rules and norms required of a member of the Council of Europe and the Organization for Security and Cooperation in Europe. In addition, the Russian Duma has proposed retaliatory legislation that would blacklist foreign bureaucrats and public officials who have allegedly violated the rights of Russian citizens located abroad (e.g., the Viktor Bout case). This proposal is seen as a joke in both Russia and the West, and this administration should not lend it any credence but instead reject insulting comparisons between Sergei Magnitsky and arms dealer Viktor Bout.

Graduate Russia from Jackson-Vanik, but only if the Magnitsky legislation is passed in its place.

Madame Chairwoman, I have supported graduating Russia from the 1974 Jackson-Vanik for many years, both when I was in the U.S. government and today. It served its purpose very well in promoting the emigration of Soviet Jews at the time, but it is legislation that no longer addresses current-day problems in Russia. I understand and appreciate the arguments made by those, including Ed Verona, whom I respect very much, that not lifting Jackson-Vanik would hurt our companies. I agree. But I am not prepared to support graduating Russia from Jackson-Vanik in the absence of the Magnitsky legislation. It would send a terrible signal to lift Jackson-Vanik and have nothing to take its place. It would be a symbolic award to a Russian government undeserving of any such measures, and it would undermine the very people who braved the weather and threat of violence by turning out to protest last week in Russia.

Confirm Michael McFaul as the new U.S. Ambassador to Russia.

As I have argued on several occasions, including in a joint letter to President Obama urging him to address concerns that some Senators have with the McFaul nomination, I strongly believe that the U.S. would benefit from having Mike McFaul in place in Moscow as U.S. ambassador. Especially given recent events, we need him there more than ever. Notwithstanding serious concerns I have had with Obama’s reset policy – I think the administration has oversold its successes, essentially ignored Russia’s neighbors, and done too little on human rights concerns – McFaul is a renowned Russia expert, a strong proponent of democracy promotion (in fact he recently wrote a book on the subject) and deserves Senate support. He regularly meets with representatives and activists from Russia’s neighboring states, even though those countries technically fall under a different directorate at the NSC. He also meets with Russian opposition figures and civil society activists both in Washington and every time he travels to Russia. I am confident that Russia’s deteriorating human rights situation will receive high-level attention at the U.S. Embassy, if he gets confirmed. The next few months in particular will be a time when we will want insights and advice from the ground in Russia from an experienced Russia-watcher like McFaul.

In conclusion, contrary to Putin’s claims that last week’s developments were the inspiration of the U.S., it was Russians who took to the streets with the hope that their voices would be heard and their government held accountable. The demonstrators took extraordinary measures to have their rallies remain peaceful (including handing out notes about how to avoid confrontations and carrying white ribbons, balloons, and roses). Last week was a victory for the Russian people over authoritarianism, corruption, and repression. There is a long way to go, for sure, but last week was a promising beginning.

Thank you for your attention, Madame Chair, and I’m ready to answer any of your questions.